Will South Africa Choose A Sexist Homophobe As Chief Justice?

Until very recently few South African’s had ever heard of Mogoeng Mogoeng and when the country’s president, Jacob Zuma, announced the constitutional court judge as his preferred candidate for the newly vacant job of chief justice, even senior members of the judiciary were taken by surprise.

Surprise has quickly turned to outrage and open hostility with the discovery that Mogoeng not only has relatively little experience compared to other contenders for the job, but is a political conservative, especially when it comes to issues of women’s rights and sexual orientation.

As the country’s highest legal official, South Africa’s chief justice exercises authority over all of its courts and presides over the most powerful legal body of the land, the constitutional court.

While nobody would be particularly taken aback by a Republican US president appointing a conservative judge, it is rather perplexing to see the equivalent being proposed by President Zuma, whose party, the African National Congress, purports to hold policies of non-sexism, non-discrimination and human rights.

Many commentators argue that Mogoeng’s stance on women’s rights and sexual orientation are incompatible with South Africa’s internationally-respected liberal democratic constitution. These claims are based, in part, on judgements he handed down in appeal cases while he was a high court judge.

Two especially controversial cases revolve around marital rape, which is illegal in South Africa. In 2004 Mogoeng halved, on appeal, the ten-year prison term of a man who had been found guilty of raping his eight-month pregnant common law wife in front of another person. He cited the fact that the appellant was a first offender and that he and the complainant had been lovers as mitigating factors, stating that the nature of their relationship was “such that it renders their intercourse incapable of being legally categorised as rape”.

In 2007 Mogoeng suspended the two-year sentence of another man who had been convicted of throttling his wife, whom he was in the process of getting divorced from, pinning her to her bed and raping her. Mogoeng opined that “the desire to make love to his wife must have overwhelmed him, hence his somewhat violent behaviour”, that “no real harm or injuries resulted from the throttling” and that the situation was not comparable “to a case where a lady comes across a stranger on the street who suddenly attempts to rape her”.

In 2001, Mogoeng had overruled yet another man’s two-year assault conviction for being “too harsh by any standards”. He suggested that the accused, who had tied his girlfriend to the back of his car and dragged her “at a fairly high speed over a distance of about 50 metres”, had been “provoked” and that the complainant, whom he’d only taken to hospital on the following day, had not sustained serious injuries.

Mogoeng’s critics also point to the fact that he’s an ordained pastor in a church that preaches that homosexuality is a perversion and sin that can be cured.

A number of human rights and civil society organisations are challenging president Zuma’s recommendation of Mogoeng for the position of South Africa’s new chief justice.

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Andreas is a book shop manager and freelance writer in Cape Town, South Africa. Follow him on Twitter: @Andreas_Spath